"Getting to know the Personal Data (Privacy) Ordinance" (cont.)

Journalists' Concerns

The concerns of journalists, on the other hand, reflect the tension that exists between the right to freedom of expression and the right to protection of privacy. Privacy has famously been described as the right to be left alone but it is the essence of journalism not to leave alone something about which the public should be informed.

The tension between these two rights was paid very close attention during the evolution of the Ordinance, not least in the committee of the Legislative Council chaired by the Hon. Emily Lau Wai-hing, which scrutinized the Ordinance prior to its enactment.

Journalists' Sources

The first concern of journalists is with respect to their sources, particularly confidential sources. A common question asked by journalists is : does the Ordinance prevent sources from passing on information?

The difficulty for a source is that the personal information he or she wishes to disclose to a journalist was most likely not originally collected for this purpose. The data protection principles say that the information should not be used for a new purpose such as this without the consent of the individual concerned. However, if the source wishes to "blow the whistle" on someone they are hardly going to seek, let alone obtain, that person's consent to tell a journalist. On this basis, President Nixon would never have been impeaches.

The Ordinance deals with this restriction by allowing disclosure of personal information to a journalist where the source has reasonable grounds for believing that the publishing or broadcasting of the information is in the public interest. Accordingly, the Ordinance simply reflects the existing basis on which sources generally provide inside information to journalists. Of course, the decision to disclose information to a journalist still rests with the individual or organisation concerned.

A second worry a confidential source may have is the possibility of being found out. A possible scenario under which it is feared this would happen goes like this. A confidential source discloses information from internal files to a journalist about the dubious activities of a particular individual. The journalist publishes a story exposing that individual's activities.The individual who is the subject of the story complains to the Privacy Commissioner about an alleged breach of privacy rights. Could the Privacy Commissioner require the journalist to reveal the identity of the source as part of his investigation?

The first point to make is that it is most unlikely that the Privacy Commissioner would wish to do this. But the straight answer is that the Privacy Commissioner cannot require a journalist to reveal the identity of a source without the authorisation of the High Court. And in considering whether such authorisation should be given the High Court is required by the Ordinance to consider a list of matters, including: whether the alleged contravention of the Ordinance is of sufficient gravity; whether the investigation would be substantially prejudiced if the relevant order were not made; and whether any common law privilege applies. The net effect is that a very high test must be met before a Court Order to this effect could be granted under the Ordinance.

Interference in News Gathering

Apart from issues relating to sources, concerns have also been expressed about a possible chilling effect on journalists caused by requests for access from individuals to the personal information they have collected in their news gathering activities. The safeguard against this provided by the Ordinance is that there is only a right of access to personal information that has actually been published or broadcast. In other words, any material that has not been published or broadcast, for example a journalist's notes and other source materials, are not covered by the access right at any time, before or after the relevant piece is published or broadcast.

The Ordinance also carefully circumscribes the Privacy Commissioner's powers of inspection and investigation in relation to journalists. He has no power of inspection of any part of a personal information system that holds such information for the purpose of a news activity. Also, the Privacy Commissioner can only investigate a suspected breach of the Ordinance following a complaint and even then only after the material that is the subject of the complaint has been published or broadcast.

All this does not mean that journalists are outside the coverage of the Ordinance. Other than the limitations already described on the individual's right of access to personal information held by journalists, the data protection principles apply in full to news gathering activities. This includes the requirement to use fair means to collect personal information. A requirement which has its counterpart in the stipulation of the Hong Kong Journalists Association's Code of Ethics that information should generally be collected by straightforward means.